Tuchowski v. Rochford

Opinion

SIXTH DIVISION October 6, 2006

No. 1-05-0491

CATHERINE TUCHOWSKI, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County ) v. ) ) ELIZABETH M. ROCHFORD, ) Honorable ) Jeffrey Lawrence, Defendant-Appellee. ) Judge Presiding

JUSTICE McNULTY delivered the opinion of the court:

Catherine Tuchowski sold her home in November 2000. In

November 2003 she sued Elizabeth Rochford, the attorney who

represented her at the closing on her home, for legal

malpractice. Tuchowski claimed that she did not discover until

2003 that Rochford had included in the sale of the home a largely

vacant adjacent lot that Tuchowski hoped to sell separately. The

trial court held that Tuchowski should have known at the time of

the sale that she had sold the vacant lot because the closing

documents Tuchowski signed included references to that lot. We

hold that Tuchowski adequately alleged facts from which a trier

of fact could infer that Tuchowski reasonably relied on her

attorney when she signed the documents without reading them.

Because we cannot say as a matter of law that Tuchowski should

have known of the sale more than two years before she filed her

complaint, we reverse the judgment entered in favor of Rochford

and remand for further proceedings on the complaint. 1-05-0491

BACKGROUND

When Tuchowski bought a condominium in 1999, she hired

Rochford to represent her. Rochford also represented Tuchowski's

daughter when the daughter sold some real estate. In 2000

Tuchowski sought to sell a house she owned in Chicago. Again she

asked Rochford to represent her. Tuchowski owned three adjoining

lots. The house stood on two of the lots, while the third lot

held only a shed and an outdoor grill. In September 2000

Bridget and Brock Merck signed a contract to purchase, for

$575,000, the house and the two lots on which the house stood.

In a letter to the Mercks' attorney, Rochford offered to amend

the contract to provide for the sale of all three lots. The

letter does not indicate that Rochford sent any copy to

Tuchowski.

On November 30, 2000, Tuchowski signed all the forms

necessary to close the sale of her house. She signed a trustee's

deed for the property. Three lines above her signature, the deed

includes a single line that reads, in small print:

"Permanent Real Estate Index Number(s): 10-32-120-034 / 10-32-120-035 / 10-32-120-036."

In October 2001 Tuchowski named Rochford successor trustee

to take control of Tuchowski's assets in trust upon Tuchowski's

death.

In September 2002 Tuchowski asked Rochford about the status

of the third lot of her property, the one which stood nearly

-2- 1-05-0491

vacant. Tuchowski also asked for a copy of the sales contract

for the other two lots. A year later, on September 3, 2003,

Rochford wrote to Tuchowski that she no longer had a copy of the

sales contract. Tuchowski obtained a copy of the contract and

the deed from another source.

On November 24, 2003, Tuchowski sued Rochford for legal

malpractice and breach of contract. Two days later Tuchowski

amended her trust to remove Rochford as successor trustee.

Rochford moved to dismiss the complaint as untimely. The

trial court granted the motion but gave Tuchowski leave to amend.

In September 2004 Tuchowski filed a second amended complaint in

which she alleged that Rochford knew that the owners of the

property next to the nearly vacant lot had offered Tuchowski

$125,000 for that lot. Tuchowski was 77 years old when she

closed on the sale of her property in November 2000. At the

closing Rochford directed Tuchowski to sign all the documents,

including the deed, to complete the transaction as quickly as

possible, so that Rochford could go to a closing on another

property. Tuchowski alleged that she did not read the deed or

other documents. She relied on Rochford.

Rochford supported her motion to dismiss the second amended

complaint with her own affidavit. She swore that Tuchowski asked

her to amend the contract for sale of the real estate to include

the nearly vacant lot. Tuchowski answered with an affidavit in

which she swore that she specifically instructed Rochford to

-3- 1-05-0491

limit the sale to the Mercks to the two lots with the house. She

never told Rochford to alter the contract to include the third

lot. She told Rochford that other buyers had offered her

$125,000 for the third lot.

The trial court dismissed the second amended complaint with

prejudice, pursuant to section 2-619(a)(5) of the Code of Civil

Procedure (735 ILCS 5/2-619(a)(5) (West 2000)), because the court

found that Tuchowski failed to file her complaint within two

years of the date on which she should have known that Rochford

had altered the contract to make it a sale of all three lots.

See 735 ILCS 5/13-214.3 (West 2000). The court said:

"[Tuchowski] was at the closing, the closing documents

are there, they describe the property that was being

sold. ***

***

*** It is her responsibility to look at the

documents."

Tuchowski now appeals.

ANALYSIS

We review de novo the dismissal of the complaint under

section 2-619(a)(5) of the Code of Civil Procedure (735 ILCS 5/2-

619(a)(5) (West 2000)). Paszkowski v. Metropolitan Water Reclamation District of Greater Chicago, 213 Ill. 2d 1, 6 (2004).

We interpret all pleadings and supporting documents in the light

most favorable to Tuchowski, the nonmoving party. Paszkowski,

-4- 1-05-0491

213 Ill. 2d at 5. The court should deny the motion to dismiss

unless the court can say, as a matter of law, that the plaintiff

should have known of her injury and wrongful causation more than

two years before she filed her lawsuit. 735 ILCS 5/13-214.3

(West 2000); Weidman v. Wilkie, 277 Ill. App. 3d 448, 456 (1995). Usually courts hold parties responsible for knowing the

contents of documents they have signed. See Breckenridge v.

Cambridge Homes, Inc., 246 Ill. App. 3d 810, 819 (1993).

However, under certain circumstances, especially in cases

involving fiduciary relationships (see Prueter v. Bork, 105 Ill. App. 3d 1003, 1006 (1982)), courts have excused ignorance of the

content of such signed documents.

In Breck v. Moore, 910 P.2d 599 (Alaska 1996), the plaintiff

sued the attorney who represented him when the plaintiff

purchased his home in 1981. In the complaint filed in 1990, the

plaintiff alleged that the attorney failed to notify him of

significant restrictions on the title to the property. The

attorney moved to dismiss the complaint based on the statute of

limitations. The trial court denied the motion, finding that the

plaintiff adequately alleged that he discovered the restrictions

in 1989. On appeal the attorney again argued that the

plaintiff's receipt of closing documents in 1981 put him on

notice of the restrictions shown in those documents. The court

held:

"The discovery rule takes into account the

-5- 1-05-0491

sophistication of the plaintiff in the particular area

of knowledge. [Citations.] *** [I]t might be

reasonable for an insured to rely on an insurance

broker's statements about the scope of coverage, rather

than reading and interpreting the detailed language of

the exclusionary clauses. [Citation.] *** [The

plaintiff] acted reasonably in relying on [his

attorney] and the real estate agents to review the

documents and identify problems." Breck, 910 P.2d at 605-06.

Illinois courts have reasoned similarly. In Melvin State

Bank v. Crowe, 97 Ill. App. 2d 82 (1968), the defendant invested

money in a business Crowe ran and she later signed a guarantee

for a loan Crowe took from the plaintiff bank. The bank sued

Crowe and the defendant to recover the loan. The defendant

countersued to recover her investment in the business. The

defendant testified that she did not read the papers she signed

at the bank concerning the investment and the guarantee. Crowe,

97 Ill. App. 2d at 89. She relied on the bank's representations

concerning the value of the investment and the need to sign the

other papers. Crowe, 97 Ill. App. 2d at 95. The trial court

entered a judgment in favor of the bank on the guarantee and on

the countersuit for the lost investment.

On appeal the bank argued that the defendant could not avoid

the effect of the guarantee because she had "a full opportunity

-6- 1-05-0491

to read the instrument." Crowe, 97 Ill. App. 2d at 96. The

appellate court answered:

"[A] false representation by an experienced banker ***

is calculated to disarm an inexperienced person. ***

[I]t affirmatively appears that the judgment note was

not explained to [the defendant]. *** [I]t is obvious

that she did not understand the matter of the guarantee

***." Crowe, 97 Ill. App. 2d at 96.

The court reversed the judgment for the bank on the guarantee and

on the countersuit, and remanded for a new trial to focus on the

issue of the bank's fiduciary duties to the defendant. Crowe, 97 Ill. App. 2d at 97-100.

Here, Rochford had fiduciary duties as Tuchowski's attorney.

In re Marriage of Pagano, 154 Ill. 2d 174, 185 (1992).

Tuchowski alleged that she did not read the deed and other

documents she signed at the closing. She relied on Rochford when

she signed those documents. Rochford told her to sign quickly

because Rochford needed to attend another closing. After the

closing Tuchowski did not look for the documents until September

2002, when she asked Rochford about the status of the third lot.

She did not discover that she had sold the third lot until she

obtained copies of the closing documents after September 3, 2003.

She filed this lawsuit in November 2003.

Rochford stresses that when Tuchowski signed the deed she

signed only three lines below a line that showed three separate

-7- 1-05-0491

index numbers for the deeded property. Rochford argues that

Tuchowski must have seen the line and she must have deduced that

the deed gave the Mercks title to all three lots. We agree that

the deed can support an inference that Tuchowski should have

known, when she signed the deed, that the deed referred to all

three lots. However, we find that some rational triers of fact

might not reach that same inference from the evidence as a whole.

Taking into account the size of the typeface, Tuchowski's age

and sophistication, and the time constraints Rochford placed on

her, a trier of fact may believe that Tuchowski either did not

see the line at issue, or she did not understand the special

significance of the sequence of digits, slashes, dashes and

spaces on that line. We cannot say, as a matter of law, that

Tuchowski should have known, before November 2001, that contrary

to her explicit request, Rochford added the third lot to the

property sold to the Mercks. We find that the allegations and

the affidavit could support a finding that Tuchowski did not know

of the malpractice before November 2001.

Rochford contends that we should affirm the judgment in her

favor, without considering the statute of limitations, because

Tuchowski did not adequately allege that Rochford breached her

duties to Tuchowski, or that the breach proximately caused

damages. See Sorenson v. Law Offices of Theodore Poehlmann, 327 Ill. App. 3d 706, 707 (2002). Tuchowski attached to her

complaint a contract in which the Mercks agreed to pay Tuchowski

-8- 1-05-0491

$575,000 in exchange for the two lots on which her house stood.

She told Rochford she wished to sell only the two lots to the

Mercks. Tuchowski alleged, with supporting documents, that

Rochford altered the contract, without providing notice to

Tuchowski, to provide for the sale of all three lots for the same

price the Mercks had offered for the two lots. We find the

allegations sufficient to support an inference that Rochford

breached her duties as Tuchowski's attorney and she breached her

contract to represent Tuchowski's interests.

Tuchowski alleged that her neighbors offered her $125,000

for the third lot, and Rochford obtained nothing from the Mercks

in exchange for the third lot. We find the allegations

sufficient to support an inference that the breach of duties as a

lawyer, and of the contract to represent Tuchowski, caused

Tuchowski to lose $125,000. The complaint sufficiently states a

cause of action for legal malpractice and breach of contract.

The parties offered conflicting evidence concerning their

interactions before the sale. A trier of fact who found

Tuchowski credible could conclude that Tuchowski did not know

before November 2001 that Rochford included the third lot in the

sale of Tuchowski's property to the Mercks. The trier of fact

might find that Tuchowski's reliance on her attorney provided

reasonable grounds for failing to read the documents she signed

at the closing. Thus, the trier of fact could conclude that

Tuchowski filed her claims against Rochford within the period

-9- 1-05-0491

permitted by the statute of limitations. As the complaint

sufficiently states claims for legal malpractice and breach of

contract, we reverse the judgment entered in favor of Rochford

and we remand for further proceedings in accord with this

opinion.

Reversed and remanded.

FITZGERALD SMITH, P.J., and O'MALLEY, J., concur.

-10-